California Open Carry Lawsuit - December 2013 Update

Before the usual trolls from CalGuns.nuts weigh in, a reminder - John Pierce has endorsed my lawsuit -> http://www.opencarry.org/?p=615

My district court case is fully briefed. I expect a decision from the district court in January.

On November 18, 2013 the 9th Circuit Court of Appeals adopted the "historical analysis" framework I advocated and rejected the 2nd Circuit Decastro "substantial burden" test advocated by California Attorney General Harris when it published its decision in US v. Chovan. Significantly, the relevant time period in the 9th Circuit under Chovan for conducting that historical analysis is the time of ratification of the Second Amendment (1791). That won't save the concealed carry lawsuits currently pending in the 9th CCA because the US Supreme Court in Heller listed concealed carry as one of the "presumptively lawful" restrictions on the Second Amendment and the concealed carry lawsuits all argued that Heller gives them a right to carry concealed.

Unlike the 9th CCA concealed carry lawsuits (Richards, Peruta & Baker, McKay, etc) I have always argued that the curtilage of one's home is one's home under Heller. None of the concealed carry lawsuits have an "in home" nexus.

AG Harris also gave me an "outside the home" nexus pursuant to US v. Chovan, when she argued that California's Open Carry bans are mitigated by various exemptions and exceptions that apply outside of one's home.

Unlike the 9th CCA concealed carry lawsuits, I also raised a "suspect classification" challenge to the 1967 ban on Loaded Open Carry the solve motivation of which was to disarm minorities. Unable to refute my claim, AG Harris argues that amending the law in 2000 to add a felony provision (unregistered, loaded handgun) negates the racist intent of the California legislature. This is, of course, analogous to adding a hobbling provision to a runaway slave statute which previously limited the punishment of runaway slaves to whipping.

The concealed carry lawsuits also failed to raise a suspect classification allegation (race) even though they could have as it is well documented that the intent of the 1923 concealed carry legislation was to disarm Latinos and Chinese (Blacks were an insignificant minority in California in 1923).

One should ask if the purpose of their concealed carry litigation was to raise money from the suckers who opened their wallets to them or, are the attorneys merely incompetent?

I took a lot of criticism from Open Carry opponents, many of them who post here including a not so thinly veiled death threat from a senior member of CalGuns.nuts. I also drew two Federal judges (magistrate and district court) openly hostile to the Second Amendment who attempted to argue the AG's case for her and who threw one obstacle after another in front of me in the hope that I would abandon my lawsuit.

To show that the gods have a sense of humor, the state's attorney representing AG Harris in my Open Carry lawsuit is the same attorney representing AG Harris in a challenge to California's 10 day waiting period laws. He made the same legal arguments in that case as he did in mine. On December 9th, 2013 Senior District Court Judge Ishii from the Eastern District of California torpedoed AG Harris' arguments in denying her motion for summary judgment. Judge Ishii made many of the same legal arguments in denying her motion that I have been making these past two years in my Open Carry lawsuit.

I never needed the Chovan analysis to win my case. I framed my lawsuit from the beginning to prevail even if there were no Second Amendment. Chovan was icing on the cake. In addition to my Fourth and Fourteenth Amendment claims, AG Harris in her own words said that the essence of the three laws I am challenging are bans. "Bans" do not require a court to decide which level of judicial scrutiny is appropriate. As in Heller and McDonald they are unconstitutional regardless of the level of judicial scrutiny.

Charles Nichols - President of California Right To Carry

"[A] right to carry arms openly: "This is the right guaranteed by the Constitution of the United States, and which is calculated to incite men to a manly and noble defence of themselves, if necessary, and of their country, without any tendency to secret advantages and unmanly assassinations."" District of Columbia v. Heller, 128 S. Ct. 2783 - Supreme Court (2008) at 2809.

More Power To Ya, CN! Your patience *and* tenacity astounds me.

BryanC
____________
Life is Precious.
CarryTheTruth

Thank you for your actions.

I am hopeful that you win, and also hopeful that you will eventually take on CA's exclusionary school "zone" - the Federal form of which was struck down, and is just waiting to be struck down again.

<edited to add> In your video on your website you are well-spoken, and apparently well-informed. AND, you are pro se!! Again, thank you.

To further spread the word about your lawsuit, and to possibly garner more $upport, I suggest that you post about the matter in another sub-forum here - maybe "Hot Topics"?

I don't know which other sub-forum might work best... maybe drop a line to John Pierce or Grapeshot (moderator) and see what they think.

Again, thanks and best wishes.

OH Man I hope you win. For your rights and to show the haters that individuals can take a stand and don't need to wait on some grand compromising game plan of large gun organizations.

I would love for this lawsuit to win so that the jerk offs at Cal Guns would have a heart attack

Very good CN And glad to see someone is fighting for our rights.
I hope you win big also.
Good luck, and there are some OC-ers who are with you.

Robin47

I might add one more thing.
The Right to Keep and Bear Arms IS a God given right.
Read the Bible (Luke 22:36) This is a order from Jesus to get a sword, for defense ETC.

If we still have our First Amendment right to free speech, and Religion, it also said's
Congress can pass no law against the free exercise of Religion.
Its a First amendment right and fight, and the 2-A is the guarantee !
"The right of the people shall not be Infringed" !

So the point is Congress and the Legislatures have no right to pass any weapons
laws against any one Period .

However evil always grabs for power,remember the movies !

Robin47

There is a reason why carry license litigants have not raised an 'in the home' nexus in their lawsuits. A carry license is not necessary 'in the home' since both loaded and concealed firearms are largely only prohibited in public places. But you knew that.

While I would be pleased as punch if this were successful in a way that would be helpful, I think it is premature to pat yourself on the back while passing the hat for more support.

ConditionThree said:

There is a reason why carry license litigants have not raised an 'in the home' nexus in their lawsuits. A carry license is not necessary 'in the home' since both loaded and concealed firearms are largely only prohibited in public places. But you knew that.

While I would be pleased as punch if this were successful in a way that would be helpful, I think it is premature to pat yourself on the back while passing the hat for more support.

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"ConditionThree" is one of the folks from CalGuns I referred to in my original post. Why John Pierce allows them to post in his forum is anyone's guess.

What ConditionThree fails to point out is that the California Courts have held that the curtilage of one's home is a "public place" unless it is completely surrounded by a tall fence or other barrier. That includes your driveway, sidewalks and any unattached structures (e.g., garage) or vehicles parked on your property (e.g., RV or motor home).

So unless your property is surrounded by a sufficiently tall fence or other barrier, the moment you step outside your door onto your private residential property carrying a loaded or unloaded firearm (openly or concealed, loaded or unloaded) you are in violation of the law, unless of course one has a CCW and Open Carry CCW's are not available, at all, to people who reside in counties with 200,000 or more people.

This, of course, is a fact even the hostile district court judge in my case recognized and referenced when he denied the motion to dismiss made by California Attorney General Harris.

As I said, none of the concealed carry cases argued an in home nexus which means if the 9th Circuit Court of Appeals concludes in the concealed carry lawsuits as they recently did in US v. Chovan that the "core right" in Heller is limited to the home then the concealed carry cases lose.

Also fatal to their cases is that they argued that the US Supreme Court decision in Heller entails a right to carry concealed. A claim even the 7th Circuit Court of Appeals rejected in Moore v. Madigan.

There are many other defects in the concealed carry cases. Ricards v. Prieto, the SAF/CalGuns concealed carry case, only argued a facial challenge. Concealed carry is not a fundamental right under Heller. Facial challenges are difficult to win even when they involve a fundamental right. A facial challenge to concealed carry will lose. The NRA/CRPA concealed carry lawsuit, Peruta v. San Diego, did not challenge the constitutionality of any law, let alone the California concealed carry statutes. It lost the moment the NRA/CRPA took over the case.

Moreover, I did not limit my case to a Second Amendment challenge. The sole, motivating factor in enacting the 1967 Black Panther Open Carry ban was to disarm minorities and by a preponderance of the evidence I have proven that the ban is disproportionately enforced against minorities. Those are the only two elements needed to overturn the Loaded Open Carry ban under the Fourteenth Amendment involving a "suspect classification" (race, in this case). Which is why California Attorney General Harris now argues:

"the Founding Fathers championed the Second Amendment...to try to legitimize Southern citizen “slave patrols” that terrorized enslaved African-Americans, and thereby to entice Southern states to support the U.S. Constitution."

According to AG Harris, the Second Amendment condones racially discriminatory gun-control laws and by overturning California's Loaded Open Carry ban (PC 25850) the court would be overturning the Second Amendment.

"This Court should not overturn either the Second Amendment or what Nichols sees as its antagonist, Section 25850..."

I did not ask for donations in my post but now that ConditionThree has opened his mouth, those who would like to donate to my Open Carry lawsuit can do so by either following the link from John Pierce's page at this site http://www.opencarry.org/?p=615 or one can go directly to my website http://CaliforniaRightToCarry.org and click on one of the donation links.



There is an old saying, "Better to remain silent and thought the fool than to open one's mouth and leave no doubt."

onus said:

I would love for this lawsuit to win so that the jerk offs at Cal Guns would have a heart attack

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I know a couple of lawyers with cases pending before the 9th Circuit Court of appeals. They occasionally send me links from CalGuns.nuts where a couple of their senior members have seen the writing on the wall and finally realize they are very likely to lose their concealed carry case in the 9th CCA just as they have lost in every other Circuit Court of Appeals.

That amuses me no end.

Lol

Next thing you know, CG.nutz will be trying to hire you CN ROFLMFAO

JYD911 said:

Next thing you know, CG.nutz will be trying to hire you CN ROFLMFAO

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Given that a senior member of CalGuns.nuts emailed me a two page death threat, coupled with the numerous not so thinly veiled threats against me made by Open Carry opponents at CalGuns in their forum these past two years or so, hiring me isn't on their agenda. Shooting me in the back, as one of them threatened to do, is a more likely outcome.

I was hoping to get the CalGuns death threat in the appellate record before the NRA got my case stayed so the 9th CCA could appreciate the ramifications of deciding in CalGuns favor in their concealed carry case (Richards v. Prieto). I will be filing a motion to lift the stay of my preliminary injunction appeal next month and since the 9th CCA doesn't seem to be in a hurry to decide Second Amendment cases, there may still be time.

I once again have to express my bewilderment as to why CalGuns members and supporters of CalGuns which argued to uphold California's Open Carry bans in their Federal concealed carry lawsuit are even allowed to post here.

Charles Nichols - California Right To Carry

California Right To Carry said:

"ConditionThree" is one of the folks from CalGuns I referred to in my original post. Why John Pierce allows them to post in his forum is anyone's guess.

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Actually, I registered with this forum in 2005- before the old OCDO forum was imported into the current format and member profiles were lost. I remained the only poster and activist (note 'state pioneer') in the California section for quite some time and it wasn't until someone who used to post here recommended that I hop on Calguns.net in 2007.
John Pierce allows reasonable, articulate people to post here within published guidelines. None of what I have to say violates the forum rules. Bashing other gun organizations on the other hand, is prohibited as follows;

(12) NO BASHING OF OTHER GUN RIGHTS ORGANIZATIONS: Regardless of how convinced you are that another gun rights organization is not doing their job, this is not the place to air those concerns unless they are specifically related to an anti-open carry position taken by that organization. All other rants against other gun rights groups will be deleted or the thread locked.

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IIRC this is why you were previously banned from OCDO. This factoid of course, doesn't even scratch the surface of some rather douchey behavior off the forum.

California Right To Carry said:

What ConditionThree fails to point out is that the California Courts have held that the curtilage of one's home is a "public place" unless it is completely surrounded by a tall fence or other barrier. That includes your driveway, sidewalks and any unattached structures (e.g., garage) or vehicles parked on your property (e.g., RV or motor home).

So unless your property is surrounded by a sufficiently tall fence or other barrier, the moment you step outside your door onto your private residential property carrying a loaded or unloaded firearm (openly or concealed, loaded or unloaded) you are in violation of the law, unless of course one has a CCW and Open Carry CCW's are not available, at all, to people who reside in counties with 200,000 or more people.

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I didn't mention it, because it is not relevant in the context which you are attempting to prove the superiority of your legal strategy. Carry licenses are only made necessary in California for the purposes of carrying firearms in public places. If you are arguing in favor of carrying firearms in public, there is no application for an 'in the home' nexus, as that is not in 'public'.

California Right To Carry said:

Given that a senior member of CalGuns.nuts emailed me a two page death threat, coupled with the numerous not so thinly veiled threats against me made by Open Carry opponents at CalGuns in their forum these past two years or so, hiring me isn't on their agenda. Shooting me in the back, as one of them threatened to do, is a more likely outcome.

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I won't bother with asking you to produce the death threat here, because if you haven't already presented it to the police as a credible threat against your life, it doesn't exist. While I can easily imagine you received a letter from director/s at CGF, urging you to not advance your cause like 'The Charge of the Light Brigade' in such strong language as to offend your feelings, I think the only thing they might have indicated would be shot is our collective foot, should you fail in your experimental legal endeavor.

I hope that California can be freed of the discretionary licensing scheme and that loaded open carry can be restored, but I also do not want someone taking their best stab at it, to inadvertently create a legal precedent that would be impossible to remove in our lifetimes.

ConditionThree said:

Actually, I registered with this forum in 2005- before the old OCDO forum was imported into the current format and member profiles were lost. I remained the only poster and activist (note 'state pioneer') in the California section for quite some time and it wasn't until someone who used to post here recommended that I hop on Calguns.net in 2007.
John Pierce allows reasonable, articulate people to post here within published guidelines. None of what I have to say violates the forum rules. Bashing other gun organizations on the other hand, is prohibited as follows;

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The CalGuns Foundation is not a gun-rights organization. Your beloved group, in conjunction with the SAF, has a Federal lawsuit pending before the 9th Circuit Court of Appeals where it argued that California can ban Open Carry. Your support for CalGuns on an Open Carry website is analogous to a neo-Nazi spamming a Jewish website.

ConditionThree said:

IIRC this is why you were previously banned from OCDO. This factoid of course, doesn't even scratch the surface of some rather douchey behavior off the forum.

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I was banned by Grey Peterson who himself had his own Federal lawsuit arguing that states can ban Open Carry in a failed, backdoor attempt to obtain a concealed carry permit out of Colorado. Peterson himself was fond of making a number of libelous posts directed at me and who was also a forum moderator at CalGuns.nuts.

ConditionThree said:

I didn't mention it, because it is not relevant in the context which you are attempting to prove the superiority of your legal strategy. Carry licenses are only made necessary in California for the purposes of carrying firearms in public places. If you are arguing in favor of carrying firearms in public, there is no application for an 'in the home' nexus, as that is not in 'public'.

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One again you are lying to the folks. There are several California appellate decisions which have held that private residential property is a "public place" in the context of California's gun-control laws. One of which is People v. Strider, 177 Cal. App. 4th 1393 (2009)

ConditionThree said:

I won't bother with asking you to produce the death threat here, because if you haven't already presented it to the police as a credible threat against your life, it doesn't exist. While I can easily imagine you received a letter from director/s at CGF, urging you to not advance your cause like 'The Charge of the Light Brigade' in such strong language as to offend your feelings, I think the only thing they might have indicated would be shot is our collective foot, should you fail in your experimental legal endeavor.

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I produced it where it counts, in Federal Court. But you would know that had you bothered to read the briefs instead of pontificate on things about which you haven't got the slightest clue.

ConditionThree said:

I hope that California can be freed of the discretionary licensing scheme and that loaded open carry can be restored, but I also do not want someone taking their best stab at it, to inadvertently create a legal precedent that would be impossible to remove in our lifetimes.

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Your support of CalGuns proves that you oppose Open Carry and want concealed carry via government issued permission slips. One can't be a pro-Jewish member of the SS. So please, stop spamming my posts and go back to your fellow Open Carry opponents at CalGuns.

Friends don't let friends belong to organizations, like CalGuns, that oppose Open Carry.

Gray Peterson seemed to have a habit of that. (moderation style and personal attacks)

Lawsuits that want to cater to the fear of the hoplophobes are not good strategy.

At this point I'm not sure how anybody with a law degree can argue a specific constitutional right to concealed carry. I think the second amendment clearly recognizes a right to carry, but does not specify the mode (open or concealed). If open carry is legal in a given state, then I think the state may (with regard to the federal constitution) constitutionally license or even prohibit concealed carry unless it can be shown that doing so burdens the right. For example, in states where it actually gets cold enough in the winter to require bulky protective clothing, one might argue that it is impractical to openly carry without risking it inadvertently becoming concealed and becoming a criminal offense.

If a state has a public policy reason to prohibit open carry (such as Florida's concern about its impact upon tourism) then I think they may constitutionally prohibit open carry so long as they allow unlicensed concealed carry. Put simply the state may prohibit one or the other, but not both. There must be a manner of carrying a readily accessible, loaded firearm, for immediate use, without a license in order to avoid "infringing" the right (in my opinion).

All of that said, you've indicated that the court is hostile to you and your position. You've said that the court will be ruling on the matter so presumably your request for a jury trial was denied. Having read your complaint it seems as though there are no questions of fact and only questions of law. Although I believe juries are to judge both the facts and the law, the guys in the black dresses feel otherwise. If your case has no issues of fact you generally will not get a jury trial as judges settle all issues of law (as I understand it).

Good luck with your suit. Should you not prevail do you intend to appeal?

BrianB said:

At this point I'm not sure how anybody with a law degree can argue a specific constitutional right to concealed carry. I think the second amendment clearly recognizes a right to carry, but does not specify the mode (open or concealed). If open carry is legal in a given state, then I think the state may (with regard to the federal constitution) constitutionally license or even prohibit concealed carry unless it can be shown that doing so burdens the right. For example, in states where it actually gets cold enough in the winter to require bulky protective clothing, one might argue that it is impractical to openly carry without risking it inadvertently becoming concealed and becoming a criminal offense.

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One doesn't need a law degree, one just needs a 7th grade or better level of reading comprehension and to read all of the failed concealed carry cases brought by the NRA/SAF/CalGuns/etc brain trusts. The Second Amendment does not differentiate between concealed and open carry and the Heller Court did not say that it did. If the time of adoption of the Second Amendment were the relevant date then there would be little or no prohibitions on concealed or Open Carry. There would be prohibitions on the use of concealed weapons but not on the carrying of concealed weapons.

If it wasn't clear from the Heller decision, then you should read the transcripts to the oral arguments from McDonald on the incorporation of Heller. For purposes of incorporation, the time of the adoption of the 14th Amendment (1868) is the relevant date. As Heller pointed out, by that time many states had adopted prohibitions on concealed carry (except for travelers while on a journey) and concealed carry therefore fell outside the scope of the Second Amendment as it was understood by the Framers of the 14th Amendment. Since Heller was incorporated via the 14th Amendment, there is no right to concealed carry under the Second Amendment. As the 10th Circuit pointed out in Peterson, that doesn't mean a concealed carry prohibition can survive even rational review but Heller isn't the vehicle to overturn such a prohibition.

BrianB said:

If a state has a public policy reason to prohibit open carry (such as Florida's concern about its impact upon tourism) then I think they may constitutionally prohibit open carry so long as they allow unlicensed concealed carry. Put simply the state may prohibit one or the other, but not both. There must be a manner of carrying a readily accessible, loaded firearm, for immediate use, without a license in order to avoid "infringing" the right (in my opinion).

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Fortunately, that isn't the way the Constitution works. Florida may no more prohibit Open Carry than Florida can prohibit Blacks or Jews.

BrianB said:

All of that said, you've indicated that the court is hostile to you and your position. You've said that the court will be ruling on the matter so presumably your request for a jury trial was denied. Having read your complaint it seems as though there are no questions of fact and only questions of law. Although I believe juries are to judge both the facts and the law, the guys in the black dresses feel otherwise. If your case has no issues of fact you generally will not get a jury trial as judges settle all issues of law (as I understand it).

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My "request" for a jury trial has always been a precautionary request. If one does not make the request when the case is first filed then one loses the right to have a jury trial. It is the Attorney General who wants a jury trial because she wants to delay my case even further. She has contrived a "dispute" with around a dozen of my proposed statement of undisputed facts. Amusingly enough, most of the disputes are with quoted sections of her own publications which she said in the Answer to my Complaint "speak for themselves." AG Harris did not provide any evidence to support her dispute with herself.

Since AG Harris has not specifically requested a jury trial and there comes a point in a case where even the district court judge must realize that requiring a jury trial for the purpose of allowing the Attorney General to dispute her own facts would make him look like an idiot, the odds are against there being a jury trial.

BrianB said:

Good luck with your suit. Should you not prevail do you intend to appeal?

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From the beginning I have said that I expect to lose in the district court and that my case will be won or lost on appeal. I have already appealed the denial of my preliminary injunction and will be appealing my inevitable loss in district court. Keep in mind that the district court judge assigned to my case said that the passage from Heller saying that Open Carry is the right guaranteed by the Constitution actually means that states can prohibit both Open and concealed carry.

Charles Nichols - President of California Right To Carry

California Right To Carry said:

Fortunately, that isn't the way the Constitution works. Florida may no more prohibit Open Carry than Florida can prohibit Blacks or Jews.

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I'd be interested to know your reasoning behind this statement -- at least as applied to handguns. Even if you had unlicensed concealed carry, an open carry ban does infringe the right to bear arms in that it leaves no way to legally carry a long gun for practical self defense. But when it comes to handguns, if a state chose to allow unlicensed concealed carry, yet categorically prohibit open carry, how is your right to bear arms infringed? I suppose one might argue that if they were wearing a bikini at the beach they would have no practical way to carry a concealed firearm and therefore open carry is the only feasible mode of carry. I suppose nudists might also be able to make some sort of case if it weren't for the fact that nudists are generally confined to private property to begin with.

BrianB said:

I'd be interested to know your reasoning behind this statement -- at least as applied to handguns. Even if you had unlicensed concealed carry, an open carry ban does infringe the right to bear arms in that it leaves no way to legally carry a long gun for practical self defense. But when it comes to handguns, if a state chose to allow unlicensed concealed carry, yet categorically prohibit open carry, how is your right to bear arms infringed? I suppose one might argue that if they were wearing a bikini at the beach they would have no practical way to carry a concealed firearm and therefore open carry is the only feasible mode of carry. I suppose nudists might also be able to make some sort of case if it weren't for the fact that nudists are generally confined to private property to begin with.

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Obviously, you have never read the US Supreme Court decision in District of Columbia v. Heller, 128 S. Ct. 2783 - Supreme Court (2008). Hint, look at the section of Heller where the Court joined the two halves of the Second Amendment and defined what "bear arms" means.

Your "bikini/nudist" scenario is moronic. Please do not spam my posts.

Charles Nichols - President of California Right To Carry